Stitle v. Stitle

• Decision Date: 24 March 1964
• Docket Number: No. 30285,30285
• Citation: 197 N.E.2d 174,245 Ind. 168
• Parties: Harry M. STITLE, Jr., Appellant, v. Pauline A. STITLE, Appellee.
• Court: Indiana Supreme Court

Page 174

197 N.E.2d 174

245 Ind. 168

Harry M. STITLE, Jr., Appellant, v. Pauline A. STITLE, Appellee.

No. 30285.

Supreme Court of Indiana.

March 24, 1964.

Stevenson, Kendall & Stevenson, Danville, Harry M. Stitle, Jr., Indianapolis, pro se, for appellant.

Raber & Vandivier, John Carl Vandivier, Jr., Danville, Raikos, Barton, Rochford & Thomas, John J. Rochford, Indianapolis, for appellee.

JACKSON, Judge.

This is an appeal from a judgment of the Hendricks Circuit Court finding appellant guilty of contempt for violation of a support order incident to a decree of divorce previously entered.

The factual situation may be best summarized by reference to the Affidavit for Contempt Citation filed by appellee and appellant's Answer in Denial thereto. The above mentioned pleadings, omitting formal parts, verification and signatures follow chronologically.

'Affidavit for Contempt Citation

'Comes now Pauline A. Stitle, who being first duly sworn upon her oath, says that she is the plaintiff in the above entitled cause of action wherein she was granted a Decree for Divorce on or about December 3, 1956, and as a part of the decree for the divorce entered herein she was awarded the custody of the two minor children of the parties, Harry M. Stitle, III and Stephen A. Stitle.

'That the defendant was ordered to pay the sum of $200.00 per month, payable $100.00 on the first day of each month and $100.00 on the 15th day of each month, for the support and maintenance of said minor children, and that said order for support has since said date not been modified.

'That the defendant has refused, failed and neglected to comply with the order of this Court in that he failed to make all the required payments in the years 1959, 1960 and 1961 and has failed to make payments in the correct amounts in each of said years, and is now in arrears in the approximate amount of $1,100.00.

'That the defendant should be ordered to pay a reasonable sum for the use and benefit of plaintiff's attorneys herein.

'WHEREFORE your Affiant prays that a rule may issue against the defendant to show cause why he should not be punished for his contempt of court in disobeying said order.'

'ANSWER DENYING FACTS ALLEGED IN AFFIDAVIT FOR CONTEMPT CITATION.

'Comes now Harry M. Stitle, Jr., defendant herein, and denys the facts stated in the affidavit for contempt citation filed herein on January 11, 1962 and alleges:

'1. That upon the decree of divorce being granted in this court on December 3, 1956, he made a payment to the Clerk of Marion County, for the use and benefit of plaintiff in the amount of One Hundred Dollars ($100.00) to pay for the second half of December, 1956, for the support of his two sons.

'2. That during the year of 1957, his sons resided with their mother the entire year and he paid the sum of Twenty Four Hundred Dollars ($2,400.00) to the Clerk of Marion Circuit Court for the use and benefit of plaintiff.

'3. That during the year of 1958, his sons resided with their mother the entire year and he paid the sum of Twenty Four Hundred Dollars ($2,400.00) to the Clerk of Marion Dircuit (sic) Court for the use and benefit of plaintiff.

'4. That during the year of 1959, his sons resided with him during the four (4) week period from the 15th day of July until the 14th day of August, during which period no support was payable and he therefore paid the Clerk of Marion Circuit Court for the year 1959, the sum of Twenty Two Hundred Dollars ($2,200.00), for the use and benefit of plaintiff.

'5. That during the year of 1960, his sons resided with him during the month of July, during which period no support was payable and he therefore paid the Clerk of Marion Circuit Court for the year 1960, the sum of Twenty Two Hundred Dollars ($2,200.00), for the use and benefit of plaintiff.

'6. That during the year of 1961, for the first five and one-half months, he paid the sum of Eleven Hundred Dollars ($1,100.00) to said clerk of Marion Circuit Court for the use and benefit of plaintiff, and that his son, Harry III, having graduated from Broad Ripple High School in the second week of June, 1961 and having obtained employment, pursuant to the law of the State of Indiana, ceased to pay support payments for Harry III, but continued to pay support payments for his son, Stephen, at the rate of One Hundred Dollars ($100.00) per month for the remainder of the year 1961.

'7. That in the month of January, 1962, he paid the sum of One Hundred Dollars ($100.00) to the Clerk of the Marion Circuit Court for the use and benefit of plaintiff.

'8. That on February 1, 1962, paid an additional Fifty Dollars, ($50.00) to the Clerk of the Marion Circuit Court for the use and benefit of the plaintiff.

'9. That during the period between September 1, 1961, and December 31, 1961, in addition to the aforesaid support payments for his son, Stephen, he furnished his son, Harry III, funds in excess of Eleven Hundred Dollars ($1,100.00) for the purpose of attending the University of Illinois, and the purchasing of the necessary books, supplies, clothing, etc.

'WHEREFORE, defendant states that he has in all ways complied with the orders of this court and he requests that the Citation for Contempt be dismissed and the same be dismissed at the cost of the plaintiff herein.'

Thereafter, prior to a hearing on the contempt citation, appellee filed a Petition to Modify Divorce Decree in which she asked that the previous support order be doubled and also thereafter and prior to the hearing on the contempt citation appellees attorneys filed their Petition For Allowance of Partial Attorney's Fees.

We have taken appellant's condensed recital of the evidence from his brief, as the appellee in her brief paragraph six page two, 'accepts the appellant's condensed recital of the evidence in narrative form' as follows:

'I am Pauline Adair Stitle and am the same Pauline Stitle who was plaintiff in a divorce action in this court wherein a decree was entered about December 3, 1962. The decree provided for payments for the support of my two minor children in the amount of $100.00 on the first of the month and $100.00 on the fifteenth. This order was complied with in 1957 and 1958, but in 1959 there was an arrears of $200.00 for the month of July and in 1960 there was an arrears of $200.00 for the month of July. In 1961, starting in June, the arrearage for the rest of the year was $650.00

'Plaintiff's Exhibit 1 a certified copy from the Marion County Clerk of such support payments was admitted and is attached to page 41 of the transcript.

'Harry III, my son, is presently 18 years old, he is presently unemployed and is a student at the University of Illinois. I am not personally able to pay for and support his attendance at the University. His father made arrangements for him to go and this was not at my request nor at Harry's request.

'Harry attended the University of Illinois the full semester of 1961 and is in attendance there now. His tuition is not paid for the second semester and payment has not been made currently for his board and lodging. I paid for his board and lodging for the months of January and February.

'Harry paid for his books for the second semester with moneys I gave him.

'Plaintiff's Exhibits 2 and 3 are my checks to Harry III for $96.80 and $20.00, both dated January, 1962. I received $100.00 support that month. There was still a support order of $200.00 per month. (Ex. 2, Tr. p. 45; Ex. 3, Tr. p. 46)

'I wrote checks to my son in February of $96.80, $35.00 and $15.00.

'Plaintiff's Exhibit 4 is a $26.00 check dated February 5, 1962; Exhibit 5 is a deposit receipt showing deposit in Harry's account on February 7, 1962 of $35.00. (Ex. 4, Tr. p. 47; Ex. 5, Tr. p. 47).

'Harry's March board and lodging bills are not paid. A $70.00 installment has been paid on his tuition. I have made two or three other cash payments to Harry.

'I have contacted Professor Hodge of the School of Architecture.

'My son's report cards are excellent. Harry feels his grades might come down because of worrying.

'I have talked to my husband (former) several times; he is an attorney.

'At the time of the divorce my sons were twelve and ten and in grade school; Harry III has graduated from High School and is in college; Stephen is a Junior in Arlington High School and continues to reside with me and I provide the quarters where he lives and his board, lunches, school expenses, transportation and clothing. Stephen is an excellent student and participates in basketball, baseball and track.

'The expense of maintaining the boys has increased since the divorce; with Harry in the University my costs have been reduced probably three or four dollars a week for food, and Harry's visitations home for which I paid has offset this. When he returns from school he stays at my home. He was home ten days at Christmas and also at mid-term. I expect that if he returns from school to Indianapolis he will stay in my home which is a two bedroom apartment where I have lived since 1956.

'I am employed at American Fletcher National Bank and Trust Company as a clerk in the legal department; my take home pay is $60.00 per week, plus a profit share which varies from year to year. I am unable to continue the maintenance and support of the one son in college and the other one in high school out of my own funds or with the funds I have been receiving from my husband.

'I have not been able to pay any attorney's fees or costs in connection with this contempt proceeding.

'I have not discussed with my former husband the matter of Harry III's expenses at college. I have discussed with him his ability to meet the order under this decree. He said it was not a matter of money. He made plenty of money. He has also said he could send Harry to college. Harry III went to the University of Illinois at his father's suggestion--no, I think this was my son's choice. He wanted to go to the University of Cincinnati but there were two or three ahead of him on...